2019 Update on Quimi and Tundayme Tailings dams in Ecuador

11 October 2019; written David Dene and the Global Alliance for the Rights of Nature of Ecuador.

Engineer Steve Emerman’s expert report on the two Tailings dams under construction at the Mirador Mine in the Cordillera Del Cóndor has brought to our attention what could possibly constitute one of the greatest threats upon the sacred headwaters of the Amazon.

In brief, two tailings dams are under construction.

 The Quimi dam (63 meters high) is being built in a manner described in engineering terms as critical, or in other words: on the edge of collapse.

The Tundayme dam will be the highest tailings dam in the world (270 meters high). It is being built in a manner which will lead to inevitable collapse.

The following schematics visually demonstrate the dangerous building angle / techniques, being used by Ecuacorriente S.A., or ECSA as it is known in Quito.

Quimi Tailings dam with present angle of construction of 1 meter vertical to 1 meter horizontal — on ‘critical’ edge of collapse in engineering terms

The schematics show the angle of construction which is too steep in both cases.

Taking into consideration the seismic activity and extreme rainfall in the area and the upstream construction where the tailings themselves act as part of the dam, we have, in Mr. Emerman’s words, a scenario of inevitable collapse.

Tundayme dam schematic, already under construction, and projected to be the highest tailings dam in the world, using 1 meter vertical to 1.5 meters horizontal construction — whereas 1 meter vertical to 2 meters horizontal represents European standards of construction

Upstream construction has been declared illegal in Chile and in Brazil.

Upstream construction is primarily appropriate in semi-arid zones without seismic activity. If these tailings dam are constructed, they will in all probability collapse.

Two important reasons contribute to this future possible scenario. One is the seismic activity already recorded and present in Ecuador. This worst scenario indicates a 350 kilometer area of the sacred headwaters of the Amazon will be inundated by a tsunami  of tailings with toxic materials, which will irredeemably kill and bury all life under poisonous mud.

Another consideration remains the heavy rainfall in the area, which will produce a “run off” from these dead river valleys. This may flow across borders and pollute the River Amazon with heavy metals, cyanide, mercury, arsenic and sulphuric acid, causing slow cancerous bio-accumulation in all species, including human.

To illustrate the proper angle for the 63 meter high Quimi Tailings dam, a vertical 1 meter to 2 meter horizontal slope should be used to ensure the more safe angle to keep the toxic materials enclosed

The Confederations and NGOs involved in the Initiative to protect these sacred headwaters have a need to know and understand the seriousness of this threat.

We have a case pending in the Ecuadorian Constitutional Court in which the court will have to define the precautionary principle as described in the Constitutional Rights of Nature of Ecuador.

Simply put: Nature has a right to life.

If these dams are built Nature will die.

We are asking for an injunction by the highest Court in Ecuador, in order to stop the building of these dams and review building techniques, in order to build with the highest safety standards commensurate with the Canadian Dam Association’s category of risk from these dams, risk to humans and the environment.

At present, the risk is categorized as extreme.

It is logical and responsible when faced with EXTREME risk to employ extreme caution in building constructions to ensure absolute safety in perpetuity.

It will be beneficial for the rights of Nature, if all people working for the protection of the sacred waters of the Amazon become aware of this: one of the greatest threats that the Amazon has ever faced.  It will be beneficial to have all available support in this case, especially from Indigenous Confederations whose mandate is the protection of the sacred headwaters of the Amazon.

This could be a strong pressure on the administration to care for Nature.

Author: David Dene; reprinted with express permission.

Diálogo Chino: Indigenous Communities Take Legal Action over Ecuador’s Largest Mine

7 July 2019: Originally published at Diálogo Chino by Andrés Bermúdez Liévano on July 4, 2019; republished under a Creative Commons license.

Local people seek justice through the courts over forced evictions and lack of consultation at Mirador copper mine

Luis Sánchez Shiminaycela, one of the leaders of the Mirador mining opposition group, points out the construction works from the road that led to the house where he was evicted at the end of 2015. Image Andrés Bermúdez Liévano.

Ever since more than 30 indigenous households were forcibly evicted by police and security personnel between September and December 2015, the River Quimi valley in the middle of the Ecuadorean Amazon has not had a moment’s peace.

Today, where these Shuar and Cañari-Kichwa families once lived, there gapes the gigantic open pit of the Mirador mine. The River Quimi descends from the Cordillera del Condor, a small mountain range in Zamora-Chinchipe province. The government hopes that copper extraction will begin there by the end of this year.

Mirador is the largest mine in Ecuador’s history and one of President Lenín Moreno’s “strategic” projects in a nationwide mining drive. Yet its future is uncertain in the face of a conflict between Chinese company Ecuacorriente and the villlagers of Tundayme, who are intent on recovering what they consider ancestral lands.

The backdrop is a corner of the country that scientists and biologists consider a “lost world” of immense natural wealth.

Tundayme’s evicted

No one in the Condor can agree on whether Rosario Wari Ampush reached 95, 107 or, improbably, 120 years old. However, all are certain she was the first in her family to die outside her home.

Two years before her death in July 2018, Wari Ampush and her son, who are indigenous Shuar, lost their ancestral home.

“They burned house. Grandparents built years ago. We were growing up and living there. They died there and left to us,” Rosario’s 64-year-old son Mariano Mashendo recounts in a broken Spanish almost devoid of articles. “You born here like trees, and age and die like them. Now, we don’t know what will happen with mining company. I am last of the family.”

The area where the mine will be developed is populated by indigenous Shuar peoples – who live in huts like this one – and Cañari Kichwa. Image: Andrés Bermúdez Liévano.

Mashendo tells his story from a humble wooden hut, from where can be seen the blue roof of a mining camp occupying the spot where his home once was.

At least 32 families, some 126 people, lost their homes due to evictions which the community and NGOs described as violent. The process was similar each time. Officials arrived at dawn ordering them to hand over their land and saying a cheque for compensation awaited them at the office of mining regulator Arcom.

They were given five minutes to leave. Their houses were demolished, the rubble buried in front of them.

“We filed two suits for cattle raiding, as they took 120 head of cattle and we recovered only 48, but they haven’t acknowledged liability… There has been no response from the government,” says Luis Sánchez Shiminaycela, a prominent community leader who identifies as indigenous Cañari-Kichwa.

Sánchez’s wife, daughter, parents, two brothers, their wives and five children lived in two seized houses on the banks of the Tundayme River.

At the heart of the conflict is a legal designation known as “mining easement”, which enables the government to identify property as necessary for a development project. Instead of expropriating it, the government can mandate it’s rental for up to three decades. In return, landowners receive compensation.

Manuel Mashendo, indigenous Shuar, points to where his family home was until they were evicted in February 2016. Image: Andrés Bermúdez Liévano.

“Even though people may say they don’t want to, or don’t understand the procedure, it doesn’t matter,” says attorney Francis Andrade of the Pan-Amazonian Ecclesial Network (Repam), a Catholic organisation.

Some victims were even Ecuacorriente employees at the time of eviction.

“They knocked my house down and caused me a great deal of pain, emotionally and psychologically. My parents lost their lives trying to leave us something and this company has left us with nothing,” says William Uyaguari, who worked for seven years loading drilling machinery for the mine. Uyaguari says he was fired after suing the company over the eviction.

Like others, Mashendo, Sánchez and Uyaguari rejected earlier purchase offers and, outraged by the eviction, decided not to claim compensation. Instead, they are challenging the mine in the province of Zamora Chinchipe as members of the Amazonian Community of the Cóndor Mirador Mountain Range (Cascomi), which unites indigenous Shuar, Kichwa and peasant families.

No houses remained on the eastern bank of the Quimi River, between the Tundayme and Wawayme tributaries, which flow down from the mountain and into the Quimi. Where the small hamlet of San Marcos once stood, with its church and school, there is a steep headland. Atop the cliff a gigantic hole will soon serve as a tailings pond.

On the horizon is a five-storey building hugging the edge of a hill. Behind it, Ecuacorriente S. A., also known as Ecsa, plans to open the pit to extract copper.

Tongling Nonferrous Metals Group, a mining conglomerate from China’s Anhui province and the country’s second largest copper producer, along with China Railway Construction Corporation (CRCC), one of the largest construction companies in the world, own the mine. Both are state-owned companies.

Tundayme’s story is not unique. Indigenous Shuar, who used to live where the Panantza-San Carlos copper mine now operates in another corner of the Cóndor mountain range 40 kilometres away, complained of similarly violent evictions. The owner of that mine is ExplorCobres S.A. (Exsa), which is also controlled by Tongling and CRCC.

Mirador, which expects to start extracting copper by 2020, will be the largest open cast mine in Ecuador’s history. Image: Andrés Bermúdez Liévano.

From protests to courts

Powerless to stop the evictions, the indigenous people of Cascomi changed tactics. They took the company and the Ecuadorean state to court.

In Ecuador, as well as in other Latin American countries, local communities are now opting to complain via legal and political challenges, having realised that marches and roadblocks often lead to clashes with the police and criminal proceedings.

Many are winning. Last year, the courts decided that the Kichwa indigenous community of Río Blanco was not consulted on a gold mine in their territory. In October, another court ruled in favour of the Cofán of Sinangoe, who filed a similar complaint against mining concessions. Two months ago, the Waorani of the Amazon won a case against an oil project.

The residents of Tundayme have been less fortunate but continue to explore legal options in the ongoing Mirador conflict. Their case is complex, with at least five cases awaiting judgement.

The first and highest profile legal action argued that environmental rights had been violated.

In 2013, when Rafael Correa was president of Ecuador, four NGOs, a university, and the Shuar communities claimed the mine’s environmental impact assessment had not acknowledged the habitat of two endemic bird species where the mine pit would be.

Ecuador recognised the rights of nature in its 2008 constitution. Exterminating a species is tantamount to a violation of nature’s rights, the plaintiffs argued.

Dismissed by a judge in Quito, the case remains open in the Organisation of American States supranational Inter-American Commission on Human Rights.

At the end 2013, Correa shuttered one of the NGOs involved, the Pachamama Foundation. He accused it of interfering in state policy and threatening national security. In June 2012, the Inter-American Court ruled in favour of an action brought by Pachamama Foundation against the state over its failure to consult the indigenous Kichwa of Sarayaku an oil project.

A year later, high profile Mirador opponent José Isidro Tendetza was found brutally murdered with signs of torture on his body. As Mario Melo, Pachamama’s lawyer, said: “All this shows how sensitive the Mirador issue is.”

Confrontations with mining opponents, who Correa described as “stone throwers” and “backward townspeople” have eased under Moreno. Legal challenges to mines, however, have multiplied.

In February 2018, Cascomi filed a second action, accusing the state of violating their right to decent housing by sanctioning evictions. They demanded Ecsa compensate them.

This suit, supported by Repam and legal NGO Inredh, was based on three arguments.

First, they were never forewarned of the evictions. All they were told was that there would be a process of mining easements and, in some cases, hearings.

Secondly, evictions were arbitrary and violent. They occurred at antisocial times and destroyed property.

Finally, there was no relocation plan. Many families still live in overcrowded conditions in borrowed houses, or pay rent elsewhere with no means of supporting themselves.

This is the new species of tree frog discovered in the Condor Range this year. Photo by Alex Achig.

The state countered that it does not consider Cascomi to represent an indigenous ancestral community and that Tundayme has no collective land deed demarcating the presence of an ethnic people who had to be consulted. (In Ecuador, like the US, indigenous communities own land under collective land deeds. The state says: no deed, not indigenous.)

The judge ordered an expert anthropological evaluation. But the report was inconclusive. It found that while Cascomi is not indigenous as an organisation, the territory is.

On 15 January 2019, a Quito judge sided with the government and dismissed the case, ruling that Cascomi is not indigenous and that evictions accorded with the law. After an appeal, on June 7 the provincial court of Pichincha upheld the ruling. Villagers are now preparing a final appeal to the constitutional court and will also submit to the UN Committee on Economic, Social and Cultural Rights.

There is also a criminal complaint against Ecuacorriente for environmental damage to water sources, presented by provincial indigenous governor Salvador Quishpe and the Confederation of Indigenous Nationalities of the Ecuadorean Amazon (Confeniae).

There is a request before the constitutional court, the country’s highest court, for risk management assessments that guarantee the dam Ecsa is building on the Tundayme River will not cause a disaster similar to Brumadinho in Brazil. This request is based on a study by US hydrologist Steve Emerman.

Finally, Cascomi and the communities of the nearby Panantza-San Carlos project, filed another action arguing that the state has failed to implement the Comptroller General’s recommendations on prior consultation and mining controls.

Cascomi leaders have spoken at hearings of the IACHR in Washington and at the UN’s periodic review of China’s human rights.

The lost world of the Cóndor

On crossing the Zamora River, mountains of an intense emerald colour suddenly rise up from the ground.

Two scientific expeditions to the El Quimi Biological Reserve, located 10 kilometres from the copper mine as the crow flies, revealed that the Cóndor mountain range is one of the most biodiverse locations in Ecuador.

Among the dwarf plants living on its rocky, flat table-top, scientists came across a minute but eye-catching brown frog with yellow spots. Following two years of study, they announced their discovery in January 2019. It was a treefrog, which they named Hyloscirtus hillisi, a new species. Its most peculiar trait is a large claw at the base of the thumb, a suspected defence mechanism.

They also found two other frogs, a lizard and a rodent in the enigmatic tepuis Amazon ecosystem that rises 2,000 metres above the jungle. These are being documented and are expected to be announced as new species imminently.

“It was such an extraordinary place, where no specimens had been collected before. We need to go back again, because there are so many species waiting to be discovered,” says evolutionary biologist and renowned herpetologist Santiago Ron.

Scientists at the Zoology Museum are still unsure what makes the Cóndor such a biodiverse place but they have several hypotheses. One is the limestone soil comprising millions of tiny seashells, something unusual in the Andes.

It’s comparable to the large rocky tepuis of the Guiana Shield that rise up sporadically in the Amazon, from Colombia to the Guianas of northeastern South America. Another is the strange mineral composition attributable to vegetable tannins that flow from their heights and give it a translucent cola-coloured hue.

As these unique habitats have a high proportion of endemic species, scientists recommended classifying the new treefrog as “critically endangered”, especially given the destruction of its habitat by the nearby Mirador mine.

Such high biological value prompted scientists to call for the designation of a national park in the Cóndor mountain range.

“We have so much to lose and we’re not taking proper care of resources that can benefit all of humanity,” says Santiago Ron.

The Coca-Cola coloured rivers of Quimi, caused by vegetable tannins, is one of the most peculiar natural features of the Cóndor mountain range. Image: Andrés Bermúdez Liévano.

There is another powerful, political reason why the area’s protection matters.

Between January and February 1995, a hundred people died during a brief war between Ecuador and Peru. The conflict centred on the Cenepa River on the Peruvian side of the Cóndor.

A peace treaty signed by the two countries in Brasilia in October 1998 put an end to more than a century of territorial disputes by promising to create contiguous national parks that would preserve the border area and mitigate future conflict. It even stipulated that indigenous people should be able to travel freely between them.

“We have made the decision, both countries, that where we used to fight, where Peruvian and Ecuadorean soldiers have died, we must honour their memories in the best way we can: by celebrating life. That is why, in that same place, we have created two ecological parks in perpetuity … so that never again can a drop of blood be shed in that part of our territories,” said then Ecuadorean President, Jamil Mahuad.

However, Ecuador has only created two small biological reserves (Quimi and Cóndor), which total 114 square kilometres.

“We feel betrayed because we helped the Ecuadorean government build these roads for the Army to use in the war, and now, when we need them, they abandon us,” says Luis Sánchez.

The scientists who have tried to publicise their findings remain concerned about the risk of open pit mine for Cóndor’s biodiversity.

“In Ecuador we don’t take into consideration the environmental mishaps of mining,” says Ron.

Huge bunkers dug in the mountain during the war between Ecuador and Peru still remain in the area. Image: Andrés Bermúdez Liévano.

Ecuadorean and Chinese national interests

Faced with dipping global oil prices, Ecuador’s last two governments sought alternative revenue streams and focused on mining.

With 3.18 million tonnes of copper, 3.39 million ounces of gold and 27.11 million tonnes of silver, Mirador is the jewel in the crown of the country’s plans for mining to contribute 4% of GDP by 2021.

Despite this, neither the government nor Ecuacorriente recognise the legacy of social and legal conflict that persists in Mirador and that could hinder its future operation.

The current government blames past mistakes on Correa’s belligerence. “We want to do things differently,” says Benalcázar, vice-minister for mining at the Ministry of Energy and Non-renewable Resources. “We want to have adequate financial, legal and security conditions in place for investors to come, with an understanding of the existing laws and regulations.”

Benálcazar cites Moreno’s 2018 decision to create a super-ministry to promote a long-term policy on hydrocarbons, mining and energy.

For the vice minister, the mine’s advantages are obvious: 3,000 direct and 10,000 indirect jobs; US$211 million in anticipated royalties and taxes; US$5.5 billion total income for the government, with 60% of the royalties to be invested at the local and provincial levels, according to the law.

Partnering with a Chinese company also gives them guaranteed access to the world’s largest copper market.

Mirador is one of four strategic mining projects for Ecuador, which bets on the mining resources to replace oil revenues. Image: Andrés Bermúdez Liévano.

“I have not witnessed any conflict. What I have seen leads me to think that a good relationship exists. They have very interesting community projects involving environmental and social issues,” says Benalcázar, who used to work in the oil sector in Colombia and Syria.

The ministry, he says, is working with Ecsa to demanding action plans to resolve environmental violations and improve industrial safety after two fatal accidents at the mine in late 2018. It also aims to increase employment of local, rather than Chinese, workers.

Ecuacorriente says it has already invested US$1.4 million in Mirador and acknowledges that relations with the communities were initially tense. It insists that they have improved since channels for dialogue were opened and community projects including folkloric dance workshops invested in.

The company is adamant that the court ruling which declared the lands of public interest justified the evictions.

“If the two parties fail to reach an agreement and the price is unreasonable, the government may resort to the right of easement as a national strategic project. It was not our company that carried it out, but the Ecuadorean government,” says Jun Zhu, Ecsa’s head of community relations.

“They proposed the solution when the project was at a standstill,” Jun says. The company, he explained, paid up to six times the market price for the land and is building the new town of Nuevo San Marcos to relocate affected families.

Neither of the two recognises Cascomi as a valid complainant, insisting that the courts proved it is not an indigenous organisation and does not have collective rights. They also say it has been manipulated by foreign actors.

“South Americans are very decent people, but are easily mobilised by slogans, especially of the spiritual or anti-materialist sort,” says Jun. “Although they are poor in life, they don’t understand that these resources can satisfy their needs, and many NGOs seize on this to promote illusions, such as opposing mining or protecting the environment for future generations. And it is easy to believe their words.”

Like Río Blanco, the Mirador case highlights that indigenous self-identification is complicated. “To be honest, I don’t think it is their own initiative. They are influenced by the NGOs, for better or for worse… It is difficult to deal with NGOs that have extreme positions and are against any kind of development”, says Benalcázar, despite the Ecuadorean government itself promoting self-identification since 2010.

Many social and academic organisations disagree.

“It is often believed that communities do not have self-determination, that their strategies and discourse are those of others who manipulate them, as if they were children or fools,” says Ivonne Yáñez, a biologist with the NGO Acción Ecológica.

“The state believes it is a question of employment, royalties and direct foreign investment, and not the environment”, Yáñez adds.

“That [self-identification] doesn’t mean there isn’t a right, which must be respected and protected, to be consulted and to protect their homes”, agrees Mario Melo, director of the Catholic University’s Human Rights Centre.

Ecuacorriente had spoken of a relocation plan for the evicted families of San Marcos, but its execution is not so evident. Image: Andrés Bermúdez Liévano.

The Inter-American Court’s ruling on Sarayaku in 2012 ordered that prior consultation be regulated in Ecuador in accordance with international norms. This motivated an official visit by Victoria Tauli-Corpuz, the UN’s special rapporteur on indigenous peoples, last November. Mirador was one of six places she visited.

Benalcázar confirmed that the government is working on a draft regulation.

Several parties seem unaware of the complexities of a territory where diverse groups have co-existed since the mid-20th century.

The Shuar, who were originally nomads, are the most numerous people of the Ecuadorean Amazon. The first settlers were the Ampush family, in 1910. Four decades later, thousands of Kichwa families migrated from the highlands to the jungle in search of land to cultivate. Among them were Luis’ family from the Sigsig mountains.

Many arrived thanks to agrarian incentives from the military dictatorship that took power in 1963, which sought to guard the border with Peru. However, that policy meant indigenous peoples from the highlands occupying other ethnic groups’ ancestral territories.

The state did not recognise collective land deeds of Amazonian peoples such as the Shuar of Tundayme, paving the way for future conflicts such as that of Mirador.

With an absent state and no space for dialogue, disputes in remote territories can rapidly escalate into open conflicts. When the government becomes aware and reacts, it is often too late.

“Instead of militarising and evicting people, sending machinery and backhoes to bury houses, the state should intervene differently, helping communities to plan,” says Jaime Vargas, Achuar leader and president of the Confederation of Indigenous Nationalities of Ecuador (Conaje).

The environmental issue, meanwhile, seems relegated to second place.

The Ecuadorian government insists that the mine will encourage development and resources that this forgotten jungle region has not yet seen. Foto: Andrés Bermúdez Liévano.

“If the region is so [biologically] rich, if it meets the requirements to be part of the system of protected areas – which is an exhaustive process – and becomes one, we will respect it,” says Benálcazar. “That was the decision of the Ecuadorean people,” he adds, referring to the February 2018 referendum that banned mining in protected areas.

Benálcazar had not heard of the newly discovered frog, nor of the state’s commitment to create a national park in the Cóndor. He did say he wants to work on biodiversity and water management with large international NGOs like the World Wildlife Fund, the Wildlife Conservation Society and The Nature Conservancy.

Ecuacorriente, for its part, insists that Tongling has never had any accidents and that its mine has the highest technical standards.

“The fact that one dam in Brazil collapsed does not mean all the dams in the world will be affected. It must be because they didn’t do their job well,” says Zhu. He says he still hopes for reconciliation with Cascomi and the Tundayme population.

Despite the appearance of tranquillity that the company and the government seek to present, a significant portion of the local population still feel their concerns have been ignored. The number of lawsuits shows that if efforts are not made to diffuse the conflict. Operations at Mirador will begin extracting copper without the community’s consent.

As Melo says: “People have seen that legal actions can be an alternative. That’s good, because if the violence escalates, everyone loses.”

The natural wealth of the Cóndor mountain range has been one of the most least mentioned arguments in the public debate about the Mirador mine. Image: Andrés Bermúdez Liévano.

This report, the second in a three-part series on the environmental and social footprint of two Chinese mining projects in Ecuador, received support from the Rainforest Journalism Fund through the Pulitzer Center on Crisis Reporting.

Request to Revise Original Sentence for Cóndor Mirador Tailings Dams

Plenum of the Constitutional Court of Ecuador, Distinguished Judges of the Constitutional Court of Ecuador,
Re: Revision of sentence
David Frederick Dene and Julio Prieto Méndez, in our capacity as United Nations experts on the Rights of Nature, respectfully allow us to point out a judgment that we consider worthy of selection and review by this Court (article 436 of the Constitution, arts. 25 and 199 of the LOGJCC, and arts. 25, 26 and 27 of the Regulations). 
The judgment responds to a request for an autonomous precautionary measure that sought to prevent an irreversible ecological tragedy. However, this request was rejected, unfoundedly, by the Judge of the Unit on Violence Against Women and the Family Unit – 4, by judgment of March 6, 2019, at 14h41 (judgment No. 17574201900084). 
As we will explain in this request, this case concerns a threat of serious and irreparable harm and presents a unique opportunity for the Constitutional Court to rule on issues of absolute national relevance, for which there are no judicial precedents. 
These issues refer to the constitutional obligations applied between individuals (or what is known as the “horizontal effect”), the difference between imminence and immediacy for the granting of a precautionary measure, and the scope of the precautionary principle in environmental matters.
The jurisdictional guarantee, in this case the autonomous precautionary measure, was intended that the company Ecuacorriente S.A. (ECSA) corrects the designs and practices used for the construction of the dams that will contain more than 300 million tons of tailings at the Condor Mirador project. 
The lawsuit does not attack environmental licenses because Ecuadorian law says nothing about the construction of mining tailings dams. 
Taking advantage of this situation, ECSA is employing economical designs that are unable to withstand earthquakes and floods. In addition, they are being built using techniques that are so dangerous that they have been banned in several countries. Independent experts consider that the possibility of failure of these dams is so high that it can be considered unavoidable.  Faced with this threat of an irreversible ecological tragedy, the precautionary measure sought to have ECSA build the mining tailings dams as safely as possible – rather than the cheapest, which is currently employed. In short, the precautionary measure does not seek to stop the mining project or any economic compensation, but demands that the dams be constructed in a way that eliminates the probability of failure, in order to guard against the imminent violation of nature’s rights.
Unfortunately, the judge issued a sentence denying the request for an injunction. Although the judge copied much of the lawsuit on its merits, she misunderstood the technical arguments and confused the imminence of the damage with immediacy. Thus, for example, there is a technical parameter concerning the capacity of dams to withstand flooding. 
In the case in question, dams were required to be constructed with the maximum capacity to withstand floods, called “1000 year flood resistance”. The Judge made a mistake and understood this reference (which is a technical design parameter) to be an estimate of the time at which the flood would occur – making its entire rationale incorrect. 
Consistent with this confusion, the judge concluded that the threat of harm that would occur in 1000 years was not imminent enough to warrant a precautionary measure.  In other words, as a result of her technical error, the judge confused the constitutional requirement of the imminence of the damage with the immediacy in which it would occur, which led her to disregard the application of the precautionary principle and to leave the constitutional obligations between individuals unapplied.
Imminence and immediacy. – While it is true that dam failure is not something that will happen immediately, it is something that will happen imminently: the failure of dams built by ECSA will occur with absolute certainty and will cause irreversible ecological damage and the loss of hundreds of human lives. 
Waiting for the threat of harm to be immediate in this case is tantamount to waiting for it to be unavoidable. When dams are built, there is no jurisdictional guarantee or human action capable of containing the disaster because the dams cannot be dismantled. In short, we cannot wait for the dam to be built to consider the threat imminent. 
The time to act is now to prevent dams from being built in such a way that they constitute a threat of irreparable damage. This imminent damage can now be stopped; but if we wait until the threat is immediate, there is nothing we can do.  
Precautionary principle. – The threat of harm should be sufficient to trigger the application of the precautionary principle. It is evident that if we wait for the immediacy or the consummation of the damage it would be too late to apply this principle. Moreover, the precautionary principle demands to be applied in case of doubt, and although the imminence of the damage in this case leaves no room for doubt, if any exists, one should act in such a way that constitutional rights are safeguarded. The judge did the opposite by ruling that the damage was not imminent because it was not immediate.  
In any case, when in doubt, this was the ideal case to apply the precautionary principle, which was totally ignored by the Judge’s ruling. Now is the opportunity for the Constitutional Court to pronounce on the matter. 
Although the scientific evidence, provided in conjunction with the application for an autonomous precautionary measure, was sufficient to establish the certainty of the failure of the dams built by ECSA, if the judge had had any doubts, she should have applied the precautionary principle. On the contrary, the judge did not understand and assumed that the damage would occur in 1000 years, so she decided that the threat was not imminent and there was no need to act. That is to say, the judge ignored her own doubt, and turned her ignorance into a sentence, denying the jurisdictional guarantee she should have granted. This inaction is a far cry from the application of the precautionary principle and the State’s duty to protect. 
Constitutional obligations between individuals. – Jurisdictional guarantees are often directed against environmental licenses because it is often argued that the Public Administration gave them improperly. 
However, in this case the environmental license has nothing to do with constitutional rights at risk of being violated. Regardless of the existence of environmental licenses, ECSA must respect the rights of nature. In other words, this case presents the opportunity for the Court to rule on constitutional obligations between private parties, since, according to the constitutional text, individuals are bound by the rights of nature directly and independently of any license or permit granted to them by the administration. It should be noted that the case in question refers exclusively to the rights of nature and constitutes an opportunity to delve deeper into the content of these rights, especially with regard to nutrient cycles and energy flows protected by constitutional law. 
The precautionary measure does not contain any economic pretension or interest in obtaining particular benefits. It does not remove or prejudice acquired rights or question the powers of public administration. It is simply the protection of the constitutional rights of nature that demands obligations to make (care) of a private individual to avoid serious, imminent and irreversible damage to the rivers of the Ecuadorian Amazon. 
Attached is a copy of the application for injunctive relief. Any response or notification will be received in the emails julio.prieto@yale.edu and david.dene@gmail.com
We sign in the quality invoked,
David Frederick Dene Julio Prieto Méndez
NIE X1734405-K REG: 17-2005-58

Published 1 May 2019

Precautionary Measures Requested at Cordillera del Condor, Ecuador


Published 6 March 2019

The Mirador Copper Mine Project presents a serious and imminent danger to the Rights of Nature in the upper Amazon river basin.

Quito, Ecuador – Last Friday, 1 March 2019, two UN Rights of Nature experts presented a request to the Ecuadorian court to suspend the construction of the tailings dams of the mega open- pit mining project “Mirador “. The tailings dams are located in the Cordillera del Condor of the Amazonian province of Zamora Chinchipe.

David Dene and Julio Prieto, experts recognized by the Harmony with Nature program of the United Nations, presented the request based on a rigorous technical report prepared by Dr. Steven H. Emerman, who is an internationally recognized expert on tailings dams and their structural integrity.

Dr. Emerman points out in his report that the current design of tailings dams – the only barrier that protects Nature from the toxic waste generated by Mirador’s mining operations – is not adequate for the natural conditions of the area, which generates a probability of failure so high that it is imminent. It is a serious and imminent threat of around 100 million tons of highly toxic waste (tailings), which will be discharged directly into the surrounding rivers.

A design similar to that of the dams that are being built at the Mirador Mine project was used in the Brazilian mine of Córrego de Feijão, whose appalling collapse in January of this year caused the death or disappearance of around 300 people, and unquantifiable damage to various ecosystems.

“When the Mirador dams fail, they will completely annihilate the life cycles of the Quimi, Tundayme, Zamora and Santiago rivers, which are tributaries of the Amazon,” said Dene. “The catastrophe in Minas Gerais (Brazil) was caused by the collapse of a dam that is small compared to the dams being built at the Mirador Mine. When the Mirador Mine dams collapse – and there is no doubt that they will collapse – the impact on ecosystems and loss of biodiversity will be catastrophic. “

The request for this precautionary measure explains in detail how the sum of adverse natural conditions and the design of dams is a perfect formula for an environmental catastrophe. “The construction method of the dams that ECSA are building at the Mirador Mine is so risky that its construction is illegal in Chile and a few weeks ago was declared illegal in Brazil,” said Prieto. “If we add to this the high seismicity and rainfall of the sector, and its rugged geography, once the dams of the Mirador project have been built, they will be like a loaded gun, ready to kill. We must intervene before the dams are finished; before the gun is loaded,” he added while discussing the case during a conference on the Rights of Nature at Yale University.

The activists are being represented by Juan Pablo Sáenz, an Ecuadorian lawyer, who stated that “this action is aimed at suspending the construction of tailings dams until their design is re-evaluated and updated, for which best practices and technologies should be adopted that guarantee the protection of the Rights of Nature, recognized by the Ecuadorian constitution “. They also have the advice of the expert in constitutional law, Gabriela Espinoza, who specializes in the application of constitutional rights between private parties. As she explains: “Since rights of nature are constitutional rights, the mining company is constitutionally obliged to respect them. Constitutionally, enforcement is a certainty. There is no constitutional grounds for a refusal”.

The mega open-pit mining project Mirador is built and will be operated by Ecuacorriente S.A., a subsidiary of the Chinese state-controlled China Railway Construction Corporation and the Tongling Nonferrous Metals Group Holding Company.

Ecuacorriente S.A. has been encountering resistance from both indigenous and environmental movements in its operations in Ecuador. Mirador’s works were temporarily suspended in November 2018, due to the death of two Ecuadorian workers caused by a failure to comply with occupational health standards.


Contact information: Ecuador – Juan Pablo Sáenz: juanpasaenz1981@gmail.com +593 98 4250 700 USA – Julio Prieto: julio.prieto@yale.edu +1 267 356 0298

EU – David Dene: david.nede@gmail.com +34 699 532842